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 paulson games wrote:

Is this normal court procedure, or is the judge just wanting to see how incompetent someone can be at suing over IP?

There is always the possibility that it meets the court requirements to be filed?

Based on the previous motion hearings and the judge's response to it - he still hasn't made up his mind on that one (well, he may have and is simply allowing the process to take due course). If you go back through the ReCap site, their are a few pages of transcripts from in front of the judge - in particular starting from page 39 of this document:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.171.0.pdf

And starting on page 6 in this document:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.172.0.pdf

Also on that page, the judge interjects with a throw away line that may give some hint of where he stands on the matter of originality of the GW products. However, because of the process - he is allowing things to go forward, not necessarily because he believes one side or the other is correct...rather because that is the process. He makes similar comments as well at other points which seem to be in somewhat of disbelief to claims of originality by GW.


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Herzlos wrote:
Even though they haven't been able to prove any confusion.

Correct.

Comparable cases regarding confusion and trademarks can be seen within various counterfeit cases dealing with designer fashion (the infamous Red Shoe case for example). One thing which distinguishes those cases from this is that the products are clearly marked in an identifiable manner which is unique to their products. It may be a textile pattern which is used (for example, many of my wife's Coach bags have a "C" pattern on them). On its own, the "C" isn't a trademark - but it is an identifying feature which adds to the fame of the Trademark. If GW used something which was unique to their company which CHS copied (a particular motif which is tied to their company or perhaps a specific color of plastic) than the case for confusion would be stronger.

The best case would probably be best met by the Aquila - though it is not nearly as unique as the other above cases as you do find similar designs in historic cases and other fictional universes.

Thanks for the links.


I really like this judge (quoting sections are allowed, right?), page 9/10 of your 2nd link:

The second thing is we're going to figure -- you guys
need to figure out and propose to me a way of getting us to a
resolution in this case sometime in my lifetime, okay, and I'm
planning to live for a while. I'm only 54, and I would like
to get this done, you know, before I go on to the great
beyond. It's not looking real promising right now, and I know
I'm being a little snide here, but, you know, you're kind of
asking for it.

He seems like a no nonsense kinda judge, and he seems to have a good grasp as to what is going on in the case, even if it is about toy soldiers:

"THECOURT: So in the words of one of my colleagues, you're really going for the capillary here. That would be as opposed to the jugular, okay. Really, I think that is such a small thing that you don't really need to do it. So I'm not persuaded by the argument of the plaintiff on that one."

17 I mean, I'm having a hard time seeing what's wrong
18 with the request that says, okay, you've got this thing here
19 that you claim is copyrighted. We dispute it's copyrightable.
20 We dispute that it's a particularly strong copyright. We
21 dispute, you know, how much scope of protection you're
22 entitled to for this, and so we want to see how you came up
23 with this. Did you come up with this by basically seeing a
24 picture in another book or, you know, reading, you know, some
25 Tolkien novel or whatever?

I know this is OT, but I want to ask anyway. GW has stated that they are bringing a second case for further CHS products, as I understand it the female 'not-a-seer' and 'not-a-scorpion'. But, wasn't both these items subject to discovery in this case? Isn't it forbidden to use discovery as a fishing trip to see what else you can pin on them?

Shouldn't they have been folded into this case?

Cheers

Andrew

 AndrewC wrote:
I know this is OT, but I want to ask anyway. GW has stated that they are bringing a second case for further CHS products, as I understand it the female 'not-a-seer' and 'not-a-scorpion'. But, wasn't both these items subject to discovery in this case? Isn't it forbidden to use discovery as a fishing trip to see what else you can pin on them?

Shouldn't they have been folded into this case?

Cheers

Andrew

Largely - which is something which I see will become potentially problematic for them in the future. Things which were addressed during various points during discovery for this case (the not-a-seer and not-a-scorpion were both parts of the depositions) are generally off limits in a future case. Discovery from this case can also not normally be used as the basis for a future case as well.

I would need to sit down though and look at the most recent complaint (not to sound like a CHS lawyer) as GW has a fairly active moving target on that. A lot of stuff has been added to, removed and generally shuffled about in terms of what they are claiming. Off the top of my head, I think there are a couple of vehicle kits which haven't been addressed - though to be honest, those would likely be an even weaker case due to the presumed functional nature of mechanical models.

Assuming CH win this case they will be in a good position to contest the next one, and while that is going on they will continue to issue products. Will GW start a third case while the second is progressing?

Could it be that GW's new strategy is the following:
"Okay, we have no chance to win this case (a.o. because we were unable to provide the necessary documents to even file the case) Now lets bury CHS with follow-up lawsuits until we catch them without pro bono lawyers."

Hasn't that pretty much been GW's strategy all these years with all of the C&D orders? Basically just bury the competition until they give up?

 Kroothawk wrote:
Could it be that GW's new strategy is the following:
"Okay, we have no chance to win this case (a.o. because we were unable to provide the necessary documents to even file the case) Now lets bury CHS with follow-up lawsuits until we catch them without pro bono lawyers."

Sean said a few posts ago that it would be considered "vicious litigation" and GW could be sued for that and would likely lose. It's an abuse of the system, and the court knows it and will react to those who do it.

Now C&D's aren't suits, so they can toss those out as they like as long as they don't straight up say that they are going to sue you, at which point apparently they MUST sue you.

C&D's are the legal equivalents of creepy stalker notes, they are warning signs that a greater problem may be coming and that to continue on will likely have some kind of consequence to it. GW hedges it's bets that most people will just think the risk not worthwhile and abort their actions. Clearly GW doesn't know how to handle what happens when they don't back down.

It is getting a bit outside my area of personal experience - so the particulars of which statute might apply to the practice are not specifically known to me, but they largely fall under the broader "abuse of process" category. Some of these are criminal, some a civil and some are simply procedural slaps on the wrist. However, should a judge issue a procedural slap on the wrist that says something along the lines of "leave CHS alone" and GW were to decide not to - they can be held in contempt of court (which can have numerous penalties up to and including jail terms).

C&D orders are not the same as C&D letters. A C&D letter can be issued by anyone to anyone for anything (more or less). They have no particular enforcement power. A C&D order can only be issued by a judge, either as a result of a successful case or in the form of a temporary injunction.

Just want to make it clear on that particular issue as my level of confidence in my understanding of that portion of the law isn't as high as it is for other aspects relating to this case.

 Kroothawk wrote:
Could it be that GW's new strategy is the following:
"Okay, we have no chance to win this case (a.o. because we were unable to provide the necessary documents to even file the case) Now lets bury CHS with follow-up lawsuits until we catch them without pro bono lawyers."

One thing to note abotu Pro Bono service is that it's not entirely free. The legal cousil doesn't charge but it's still the client responsibility to cover basic costs like filing fees, paying for phone calls or airfare for witnesses, depositions etc. Pro bono lifts a huge burden off a defendant but it's still possible to use the the cost of legal proceedings to wear down a small company depending on how much they actually make.

For example if a company only makes 15k a year, and they run 7-8k in expenses for court costs it can really damage that company finanically. Its much better than sinking 120k into a standard legal defence, but if the company is small it can still be very taxing experience and ruin them.

If they are planning a round two it's likely a dual approach of continuing to choke off the companies profits and also to cover new items that have come out since the original suit was filed.

It's one of the problems that face any small business, larger businesses with massive pockets can drown a lot of their competition simply through threat or legal action, or dragging heels when in actual trial hoping to drain their funding to the point it leathally damages the company. If you've been watching "The Men That Built America" most of the monopoly builders employed such tactics to stomp out anyone they couldn't buy. Edison/Chase used threat of legal costs to sink Tesla/Westinghouse and outright steal their patents.

Countersuing for Malicious Litigation is supposed to help defend against that, but in order for that to be sucessful you have to first weather the inital trial and be found free and clear on all counts. So if even one item sticks then you can't counter sue.

If CHS were to prove an abuse of process by GW beside being able to seek relief and compensation from the malicious prosecution the court could go further and rule against GW with prejudice, which would for a time prohibit GW from bringing further suit against CH.

I am wondering if GW lose the case are they opening themselves up to potential lawsuits from all the after-market parts makers they have forced to shut down in the past?

No. They never "forced" anything. C&D letters are not illegal and receiving one doesn't give you standing to sue the people who sent it.

 Breotan wrote:
No. They never "forced" anything. C&D letters are not illegal and receiving one doesn't give you standing to sue the people who sent it.

I'm not so sure about that!

Sending the letter may not be illegal, but i assume ( no legal expert ) the letter boil down to you are infringing on our copyrighted stuff. Stop or we will take you to court.

Now if GW loses and it it found that many of the things they are claiming to be copyrighted are not would some of these small companies that closed due to the threat of legal action have a case to sue GW for lose of earnings or damages?

I doubt there's grounds. It was still their choice to close.

They might have a case if they can prove that GW acted really, really maliciously. Operative word: might. There'd have to be more than just a nasty letter to show; it would be a bad, bad idea to make threatening a lawsuit, even one on rather thin ice, a potential tort so just a threat of suing would almost never be actionable (I'll admit this might be a rather euro-colored outlook but I can't really imagine it'll be different in the US - all of litigation would instantly degrade into one big recursive circular-sue-fest (or at leat threat thereof ) ).

pitboy2710 wrote:
Sending the letter may not be illegal, but i assume ( no legal expert ) the letter boil down to you are infringing on our copyrighted stuff. Stop or we will take you to court.

Now if GW loses and it it found that many of the things they are claiming to be copyrighted are not would some of these small companies that closed due to the threat of legal action have a case to sue GW for lose of earnings or damages?

Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.

But if you chose to shut down your business, rather than pursue such an option, I can't see a path forward for any other claims.

 Janthkin wrote:
Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.

I think declaratory judgement is too under utilized by companies that are getting C&D's and being bossed around. For those who don't understand the declaratory judgement its a preemptive means by which some one that's been threatend with legal action can go to a court and have the court outline for them how to avoid infringement or breaches. Then as long as a company follows that opinion, when a company, like GW sues it's no longer them against you, its them against the judgement of a court... a local court or court you selected, not one they chose. It also forces them to frame the arguement they have to make differently. Even before they can try and prove infringements or the alike... they first have to argue and prove that a judge's interpretation of the law was incorrect. Its an immunization from that grey part of the law that maybe ambiguous.

 aka_mythos wrote:

 Janthkin wrote:
Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.

I think declaratory judgement is too under utilized by companies that are getting C&D's and being bossed around. For those who don't understand the declaratory judgement its a preemptive means by which some one that's been threatend with legal action can go to a court and have the court outline for them how to avoid infringement or breaches. Then as long as a company follows that opinion, when a company, like GW sues it's no longer them against you, its them against the judgement of a court... a local court or court you selected, not one they chose. It also forces them to frame the arguement they have to make differently. Even before they can try and prove infringements or the alike... they first have to argue and prove that a judge's interpretation of the law was incorrect. Its an immunization from that grey part of the law that maybe ambiguous.

There are some fairly well-understood procedural hurdles to filing a valid declaratory judgment suit, especially in the IP space - good lawyers won't provide enough in the initial not-quite-a-C&D-letter they send you to put you on notice to provide standing for a declaratory judgment. And it's still really expensive to engage in such litigation, particularly in the IP space.

But it's almost always better to play in the court of your choice, rather than wherever the other party is going to drag you.

 aka_mythos wrote:

 Janthkin wrote:
Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.

I think declaratory judgement is too under utilized by companies that are getting C&D's and being bossed around. For those who don't understand the declaratory judgement its a preemptive means by which some one that's been threatend with legal action can go to a court and have the court outline for them how to avoid infringement or breaches. Then as long as a company follows that opinion, when a company, like GW sues it's no longer them against you, its them against the judgement of a court... a local court or court you selected, not one they chose. It also forces them to frame the arguement they have to make differently. Even before they can try and prove infringements or the alike... they first have to argue and prove that a judge's interpretation of the law was incorrect. Its an immunization from that grey part of the law that maybe ambiguous.

yes, but what does it cost to actually argue? I mean, those small businesses don't often have ~10K lying around to spend on attorney's fees and especially on a declaratory judgement you're on the hook for all of it, court costs, everything. Easier to just fold everything C&D'ed and just move on, I'm afraid.
Sure, you get to choose venue, but the other guy still gets to argue his side, meaning the 'big' guy can just literally bury the other side in costs. Depositions alone, all requiring your lawyer(s) to spend/waste time on, stenographer's costs etc, can rack up a bill such a small company could never possibly afford.
also, a lot of those small fries just bending over, so to say, are often not incorporated as an ltd or anything, making their owners personally liable if, say, GW were to win later on. Fighting is too expensive and business as usual to risky a strategy so folding really often is the only option.

Hell, I'm only a law student and a European one at that (so perhaps insufficiently familiar with the finer points of this in US law) but really, would you say it's a *realistic* option for someone just wanting to make a living?

Bolognesus wrote:
Hell, I'm only a law student and a European one at that (so perhaps insufficiently familiar with the finer points of this in US law) but really, would you say it's a *realistic* option for someone just wanting to make a living?

Yes, and no.

Putting on a full on legal defense like you see in this particular case would be outside the scope of your average industrious hobbyist. However, if you take a look back through the history books you can see some examples of how one person can stand up against a larger organization. For example, Battle Foam v Outrider Hobbies.

http://www.livingdice.com/4759/battle-foam-v-outrider-hobbies-trademark-case-the-judge-ruled-and-the-case-is-over/

Although that case actually went to trial and the one man show prevailed against the larger Battle Foam company - it demonstrates fairly well that the little guy doesn't just have to roll over. IIRC, most the documents were prepared by Outrider themselves...though I would have to reread the case to be 100% certain on that.

Quite often, just the hint that you will in fact stand up is enough to get another company to back down, even if it does go forward - there is a fair amount of room for a person to represent themselves, though they should seek guidance through legal groups like Chilling Effects and others who can connect you with attorneys in your area who have expertise and are of the mind that many parts of IP law have run a muck.

I know that one, but to be fair, although BF might be relatively big they didn't have the financial ability to just ROFLstomp all over outrider with endless costs the way GW could.
Still, I see your point. And again, kudos to outrider and any like them, standing up to crap like that. I couldn't in good conscience advise it on what I know, but it's good to see the bully get bitten in such cases - especially in IP related matters.

In the semi-related RPG hobby people have discouraged lawsuits by a) being ip lawyers themselves (the kenzerco guy) or b) by judgement proofing themselves, locating in a costs shifting jurisdiction, and paying for a firm to check their work out before signing on to work on any litigation on a contingency fee arrangement (the OSRIC publisher).

The OSRIC guy also pointed out to WOTC/HASBRO back in 2006 that the legal issues involved in a copyright case over rules vs artistic interpretation would attract serious pro bono and amicus curiae money and asked if WOTC really wanted to start a fight like that.

Pretty much the same as what happened with Winston & Strawn.


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Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?

czakk wrote:
Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?

I would assume that the way the Recap server works is that if a more recent version is detected the old one is dropped. The new one will likely have all the good stuff removed from it...

Not to say I told you so, but...

 Sean_OBrien wrote:

czakk wrote:
Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?

I would assume that the way the Recap server works is that if a more recent version is detected the old one is dropped. The new one will likely have all the good stuff removed from it...

Not to say I told you so, but...

I have the original saved should anyone want a copy.

You can't necessarily just ROFLstomp over the little guy just because you're rich. A little guy who knows the law can still win, if he happens to be right.

 Ian Sturrock wrote:
You can't necessarily just ROFLstomp over the little guy just because you're rich. A little guy who knows the law can still win, if he happens to be right.

that's true to a large degree. You can make it cost him dearly though. All they have to do is make it a little too dear for comfort.

Does anyone still have that document that was linked several pages back?